La Jicarita News - Community Advocacy for Northern New Mexico

Land owners in the area surrounding the town of San Luis in southern Colorado (the state's oldest town) fought for over forty years to regain land use rights first granted to them in the mid-nineteenth century by the owner of the Sangre de Cristo Land grant, Charles Beaubien. Beginning in 1849 Beaubien encouraged settlement of the nearly one million acre grant by issuing deeds to private agricultural tracts (subsequently referred to as "vara strips," a term indicating how they were originally measured), which also included the statement, "all inhabitants will have the enjoyment of benefits of pastures, water, firewood and timber." In other words, in addition to the private agricultural and residential tracts, Beaubien granted the settlers the use of a communal or "commons" area, in the mountains surrounding the community, for grazing and other resource extraction. The grant was subsequently conveyed to William Gilpin by Beaubien's heirs with the condition that Gilpin recognize the legitimacy of those agreements, which he did. In 1960 Gilpin's successors sold 77,000 acres of the grant to North Carolina timber baron Jack Taylor, subject to "the claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to and upon said land." Taylor, however, denied access to the owners of the vara strips by fencing the property and initiating a lawsuit to eliminate the use rights guarantees from the property's title. He also began intensely logging the ranch.

After forty-two years of litigation, often accompanied by local skirmishes and strife, the Colorado Supreme Court, in a June 24, 2002 landmark decision for both the local community and the land grant community at-large, upheld the use rights of local landowners. At that point the arduous process of determining who should have access to the ranch (known locally as La Sierra) and how they could restore and sustainably make use of its resources began. Arnie Valdez, a local land owner and land use management specialist, was hired by the San Luis Land Rights Council in 2004 to evaluate the condition of the ranch and promulgate a plan for grazing, firewood gathering, and timber harvesting. In conjunction with grazing consultants and Forest Guild of Santa Fe, Valdez has worked on the plan for four years and told La Jicarita News that he hopes to release it in the fall of 2008.

He explained that the first step was to "undertake an ecological inventory and map traditional resource areas through fields surveys." Based on that information, the plan breaks its analysis into sections addressing "Cultural Landscape, Natural Landscape, Vegetation and Forest Management, Grazing Management, Road Networks, and Stewardship and Management." Valdez went on to say, "The spring and summer of 2008 have focused on the completion of the Forest Management Plan, which determined high priority treatment areas for wood harvesting and timber extraction. The remaining component of the plan is the grazing management strategy, which is still being worked on. Currently a grazing association has been formed by the community and it's in the process of developing bylaws and working with consultants to develop a plan to graze between 200-300 head of cattle on the ranch."

In the meantime, the Court and a local title company have thus far certified and granted access to more than 1,000 families and individuals with more certifications still pending. Valdez believes "The Sustainable Use Rights Management Plan will help inform and guide property owners who have gained access to La Sierra in implementing their historic use rights in a way that respects the environment and assures the continuity of the landscape and natural resources for generations to come."

La Jicarita News will write a follow-up article outlining the specifics of the plan once it is released.

Editorial: Collaborative Stewardship, R.I.P.

By Mark Schiller and Kay Matthews

If there was any question that the Collaborative Stewardship Program pioneered on the Camino Real District is dead, the La Joya prescribed burn conducted earlier this summer can serve as its obituary.

When the area was first slated for thinning several years ago, district personnel worked hard on a compromise prescription that tried to address the concerns of the La Joya and surrounding communities. Working with communities and meeting their needs is part of the Vision and Mission Statement of the Collaborative Stewardship Program developed in the 1990s. So when folks wanted a "lighter touch" with regard to the cutting prescription, and more diversity in the age and types of "leave" trees, the Camino Real staff, in particular longtime employee Henry Lopez, listened. In addition, much of the La Joya thinning was achieved through the Contract Stewardship Program, so community people could harvest the resource.

When it came time to burn the area to meet the project's prescribed goals, however, the forest Supervisor and Regional offices stepped in and ignored the request of the communities, and the district, that the burn be low intensity and kept close to the ground. Lopez and district personnel had previously employed mosaic burns (as opposed to broadcast burns that include the entire understory, mosaic burns target only the slash), burns during the winter, and compression of slash piles to accelerate decomposition. He also suggested that a wood chipper could be used instead of fire and would also help regenerate grasses.

Utilizing the Carson Hot Shot crew rather than local staff, the decision was made to burn as much acreage as quickly as possible when temperatures and wind conditions were high. As a result, many of the large ponderosa pines that were designated as leave trees, were intensely scorched and probably will not survive. The ground was also scorched and may require expensive reforestation. Ojo Sarco resident Anne "Funny" Hendry had this to say about the burn: "It was bad for the trees, the wildlife, and the watershed generally. The Forest Service was insensitive to community concerns. It was outrageous."

Lopez told us that he doesn't know how much of the burned area will eventually come back, but his main concern is that the good will he had established with the communities was ruined by the results of the burn. Lopez is currently the only timber staff person at the district and by his own admission can't keep up with the firewood needs of the district communities. At least 20 people are on the waiting list for stewardship blocks and the only green fuelwood sale in the works is the Francisco project near Forest Road 155. As a result, there is a resurgence of poaching, which had been dramatically reduced when enough fuelwood was being offered. "We have no presence on the district," Lopez said. "We've seen that when we do our job and meet the needs of the community, they in turn demonstrate that they're good stewards of the land."

He went on to say that the district needs to develop a five to ten-year fuelwood management plan so that the necessary NEPA (National Environmental Policy Act) work can be done in a timely fashion. "Now we're just playing catch-up." Lopez said.

Many district staff now work out of the Supervisor's Office in Taos, leaving the district understaffed. The Forest Service claims that these reassignments are due to budget constraints and relies more and more on the Collaborative Forest Restoration Project (CFRP) to fund on-the-ground work. However, as we have pointed out in previous La Jicarita articles, much of the CFRP money goes to administrative groups that micromanage local foresters instead of directly to the contractors who could be treating the thousands of acres that desperately need thinning.

The Collaborative Stewardship Program began to deteriorate after the departure of Camino Real District Ranger Crockett Dumas and Carson Forest Planner Carveth Cramer, who along with participating community representatives were largely responsible for the district's 1997 Hammer Award from Vice President Al Gore for achieving innovative and good governance by a federal agency. Subsequent forest supervisors and planners, as well as district rangers, have effectively dismantled the program and gone back to business as usual, claiming they have the expertise to make the decisions for the communities instead of with the communities.

Water Updates

Aamodt and Abeyta Legislation Introduced

New Mexico senators Jeff Bingaman and Pete Domenici introduced federal legislation to authorize and fund the Aamodt (Pojoaque Basin) and Abeyta (Taos Pueblo) settlements on July 31. The Aamodt adjudication is the oldest lawsuit in the courts, dating back to the 1960s. The negotiation of these settlement agreements has been contentious and complicated, and the federal government has been reluctant to fund the large amounts of money necessary for their implementation.

According to the Santa County press release on the Aamodt settlement, the legislation will:

• Authorize over $100 million of federal appropriations for the construction of a regional water system serving Nambe, Tesuque, San Ildefonso, and Pojoaque pueblos.

• The state of New Mexico will pay an additional $50 million and the county of Santa Fe will pay $10 million to expand the water system to non-Pueblo residents in the Pojoaque Basin.

• The county and pueblos will form a regional water authority to operate and manage the regional system.

• The water system will deliver up to 4,000 acre feet a year of surface water diverted from the Rio Grande using water rights acquired as part of the settlement.

• The county and Pojoaque Pueblo are also planning on building a wastewater treatment system, that according to the press release, will be "complimentary" to the water system.

These water rights are contingent on the county acquiring them and transferring them to the delivery system, which is not a done deal. The water rights from Top of the World Farms in northern New Mexico are counted as part of the 4,000 afy of water, but 588 afy are under protest, and the county has yet to apply to transfer the remaining 1,162 afy. Taos County has already drafted a memorial stating it will protest such a transfer application. County attorneys for the Aamodt were successful in acquiring 500 afy of water rights that had been slated for the Abeyta settlement.

Many non-Pueblo residents of the Pojoaque Basin remain opposed to the settlement, and 850 of them signed a petition, opposed in particular to the water delivery system and utility. They are also concerned about paying for a wastewater treatment plant on Pojoaque Pueblo land and the deep wells that will be drilled as part of the agreement.

The Abeyta settlement has a hefty price tag as well, approximately $120 million, and has also generated controversy. After several new Town of Taos council members came on board in March, they fired city manager Tomás Benevidez, who had been the town's representative to the negotiations of the settlement agreement, and hired an outside attorney to review the agreement's terms. This report is not yet available to the public, but in an e-mail to the other parties to the Abeyta settlement, the attorney, Peter White, raises concerns about the settlement, including how the remaining San Juan Chama water is to be allocated to the Pueblo of Taos and the Town of Taos.

Buckman Direct Diversion Appeal Denied

Two citizen watchdog groups, Concerned Citizens for Nuclear Safety (CCNS) and Amigos Bravos, appealed the Forest Service and Bureau of Land Management Final Environmental Impact Statements for the Buckman Direct Diversion project, which will divert surface water from the Rio Grande to the city, the county, and Las Companas. As reported previously in La Jicarita News (see May 2008) the appellants main concern is that the agencies failed to "adequately evaluate or even consider any of the adverse environmental impacts that could foreseeably result if radionuclides or other water and soil contaminants emanating from the Los Alamos National Laboratory (LANL) were to migrate into the Rio Grande and enter the Buckman Diversion Project." Both agencies rejected this argument, saying it was "only speculative."

The appellants continue to raise concerns about possible contamination of both surface and groundwater supplies that will provide drinking water for the city and county. Recent statistics released in the LANL Final Site-Wide Environmental Impact Statement from the Department of Energy, reveal that there is a doubling of cesium levels in Santa Fe drinking water wells and double the federal drinking water standards for neptunium in Los Alamos County wells. The agency also reported radionuclides in the San Ildefonso drinking wells, the source of which is the manufacture of plutonium triggers for nuclear weapons at LANL. Since the Cerro Grande fire in 2000, elevated levels of radionuclide contaminates have been found in storm water run-off that is being deposited in abandoned channels and flood plains along the Rio Grande.

Joni Arends of CCNS stresses that the intent of the appeals of the Forest Service and BLM FEISs is to guarantee that water diverted from Buckman Diversion Project be free of LANL contaminants that the Treatment Plant may not be able to remove. CCNS has been meeting with the Buckman Direct Diversion Board and the city to raise its concerns, but the Board is intent on building the diversion without further delay. CCNS and Amigos Bravos must now decide if they will take their case to court. They were represented in the appeals process by Bruce Frederick of the New Mexico Environmental Law Center.

ANNOUNCEMENTS

• On July 10 state District Judge J.C. Robinson ruled in a water rights case in southern New Mexico that New Mexico's domestic well statue is unconstitutional. Mimbres Valley ranchers Jo and Horace Bounds filed the lawsuit, claiming new development wells could potentially impact the well on their ranch, and the court agreed that the potential for impairment existed, and that the Office of the State Engineer must exercise due process for domestic well applications as it does other applications for new water uses: that they be open to protest on the grounds of potential impairment. The domestic well state statute was passed in 1953 in an attempt to streamline applications for what was considered de minimus (negligible) uses by domestic wells.

The OSE appealed the decision, with the hope that the state legislature will step up to the plate and implement new legislation that protects against the uncontrolled drilling of new domestic wells in vulnerable areas. The legislature has tried to deal with this issue in the past, in four consecutive sessions, but the legislation was defeated by the development and real estate lobbies. 1,000 Friends of New Mexico is recommending legislation that stipulates new domestic wells be scrutinized in areas where impairment is likely, and automatic approval of domestic well applications (with certain conditions, such as a pre-set distance from an existing well) in rural areas with little growth.

• Nuclear Watch New Mexico has settled its multi-year lawsuit against the U. S. Department of Energy's National Nuclear Security Administration (NNSA) under the Freedom of Information Act (FOIA). Judge Bruce Black of the Federal District of New Mexico recently signed a court order requiring the NNSA to post on the internet all of its annual "Ten Year Site Plans" for its eight nuclear weapons research, testing, and production sites within 60 days after each Plan is approved by NNSA Headquarters. The agency itself has described these Plans as the foundation of its strategic planning for the future nuclear weapons complex. Nuclear Watch filed suit in 2006 to pursue a claim of a "pattern and practice of unlawfully withholding agency records" by the NNSA. The organization also had to fight against excessive redactions made to the Plans by NNSA once they were finally released. NNSA ultimately supplied the previously deleted texts of hundreds of redactions.

Jay Coghlan, Nuclear Watch Executive Director, commented, "The people's right to know under FOIA has to be continually exercised so that citizens have the information they need to hold the government accountable. U.S. nuclear weapons policies and NNSA's so-called 'Complex Transformation' are becoming increasingly controversial. We hope that public access to the annual Plans for the eight NNSA nuclear weapons sites will help to better inform that important debate."

Comanche Creek Restoration: Innovative Methods to Improve Habitat

By Kay Matthews and Mark Schiller

Fly fishermen and women were in their element as we drove along Costilla Creek in the Valle Vidal Unit of Carson National Forest. The creek and its tributaries meander through the lush green meadows of the 100,000-acre Unit that supports the native Rio Grande cutthroat trout and one of the largest elk populations in New Mexico. Taos Soil and Water Conservation District had asked us to write an article on the Comanche Creek Restoration Project (Comanche Creek is a tributary of Costilla Creek), and we were on our way to tour the project with Bill Zeedyk, the watershed restoration specialist who has been working with the Quivira Coalition, the Conservation District, and many other partners to improve habitat for the cutthroat. The U. S. Fish and Wildlife Service filed notice of its intent to list the Rio Grande cutthroat trout on its endangered species list in May of 2008. The restoration project, along with the New Mexico Department of Game and Fish's exotic species removal project, will help restore the native population and hopefully preclude the need for listing.

We spent the day with Zeedyk and about forty other folks, including Tony Benson's UNM Taos geology class, looking at the various conditions necessary for cutthroat trout survival in this unique environment, one of the last New Mexico streams where the native species thrives. Habitat improvement, along with the related goal of reducing persistent water quality concerns, are the objectives of the project.

With the assistance of two grants from the Environmental Protection Agency, administered by the New Mexico Environment Department under the Clean Water Act, the restoration partners are employing innovative methods to reduce sedimentation, turbidity, and lower water temperature, conditions necessary to promote trout survival. Strategically this involves narrowing the stream channel to increase water depth and promoting the growth of sedges and willows along the creek bank to provide shade and stabilize the streambank.

The project is a testing ground for these new methods. In the past, streamside restoration projects largely utilized gabion baskets, metal cages filled with rock, to shore-up eroding streambanks. This method requires expensive materials and "big yellow machines," as Zeedyk likes to call them. At our first stop along the tour, he showed the group a post vane construction that is designed to achieve the same result using on-sight materials and hand labor.

"Streams like to meander," Zeedyk said, "which allows them to dissipate energy during high run-off by spreading out onto the flood plain." Pointing to the eroded streambank, he noted that it evidenced past abuses of over grazing and logging. The Valle Vidal was previously owned by Pennzoil Corporation, which allowed 6,000 head of cattle to graze and created 700 miles of roads for the Pacific Stud logging company to extract millions of board feet of timber. When the Forest Service acquired the unit in 1981 (Pennzoil was granted a substantial tax break for donating the area to the federal government) it severely restricted vehicular travel, treated and closed hundreds of miles of roads, planted willows along the streambank, and constructed a mile-long elk exclosure along the stream. The Valle Vidal Grazing Association hired a herder to move the cattle between pastures and keep them from congregating along the stream. There continued to be significant streamside degradation, however, and in 2001 New Mexico Trout, a non-profit organization dedicated to the enhancement of trout fishing in New Mexico's waters through habitat restoration and education, sought the help of the Quivira Coalition to expand the restoration efforts. The Quivira Coalition's mission is "to build resilience by fostering ecological, economic and social health on western landscapes through education, innovation, collaboration, and progressive public and private land stewardship." Quivira applied for and received the first EPA grant and began working with New Mexico Game and Fish, Trout Unlimited, New Mexico Trout, the Valle Vidal Grazing Association, Youth Conservation Corps, Zeedyk Ecological Consulting, Rangeland Hands, Resource Management Services, Stream Dynamics, Rocky Mountain Youth Corps, and others. Taos Soil and Water Conservation District helped supply matching funds and acted as the fiscal agent for the project.

Zeedyk told the group that 74 post vane structures have been installed along 2.5 miles of the stream to help heal the eroded banks and recreate the natural meanders. The posts are embedded in the streambed and protrude from the bank at a thirty-degree angle. They help push the water towards the middle of the channel, while the water between the posts and bank gets slowed down. The posts work to keep the stream narrow and deep for the fish. A series of strategically placed vane structures promote sediment deposits that are stabilized by streambank vegetation, creating a new flood plain.

Zeedyk and pole vane construction

At another site downstream the project team is working on a large cutbank and point bar (sediment deposits that form on the inside edge of a creek meander), where Comanche Creek makes an overextended meander loop below the eroded bank. According to Zeedyk, the cutbank was caused by deposited sediment from Holman Creek, another Comanche Creek tributary. One of the coalition members also along on the tour, Van Clothier of Stream Dynamics, estimated that the overextended meander was depositing 50 tons of sediment per foot per year into the creek. With a grant from the state's River Ecosystem Restoration Initiative the restoration team is actually going to dig a 20-foot wide channel with a "big yellow machine" in order to recreate the creek's normal pattern and mitigate the erosion.

Zeedyk and river headcut

We also visited a site up river about a mile and a half. Here, an erosion gully had drained a small slope wetland situated on an alluvial fan (a fan-shaped deposit formed by a stream where its velocity is abruptly decreased). Zeedyk told the group that the Valle Vidal unit is comprised of 16 per cent wetland and riparian ecology, compared to the overall Carson Forest rate of four percent and the state rate of one per cent, making it a unique and valuable resource. There are four kinds of wetlands in the Unit, he explained: glacial moraines and bogs; spring-fed cienegas; slope wetlands; and riparian zones. This particular wetland gully was caused by the congregation of cattle along a grazing fence, which resulted in the topsoil washing away down the gully. The restoration team, using mostly on-site materials, employed methods called the Zuni bowl and one rock dam to stop the "power of the plunging water." The Zuni bowl (the method was developed at Zuni Pueblo) is a bowl-shaped rock formation built in the gully that catches the water and dissipates its energy. There is a fabric liner underneath the rock that helps water accumulate above the rocks to enable plant growth such as rushes and sedges. The other method uses a one rock high dam about two feet long that allows materials such as soil, elk manure, and plants to accumulate between the rocks. Once this material takes hold, and sediment begins to accumulate, another layer of rock can be added.

The gully also generated a headcut above the fence. Here, a log (posts from the former grazing fence) and fabric "step pool" was built below the first headcut. The logs and fabric were layered, and then wired in place, parallel with the gully, again to dissipate the energy of the water. The team then hand dug what is known as a "worm ditch" that deflects some of the water around the headcut and irrigates the slope fields. Maintaining these slope wetland areas not only decreases erosion but also increases forage for wildlife and livestock ten-fold.

The final restoration site we visited showcased a mini-exclosure, a fenced area that protects key willow, alder, and narrow leaf cottonwood growth from elk depredation. These kinds of vegetation help prevent streambank erosion and shade the creek, keeping water temperatures lower for trout habitat. Zeedyk explained that this particular method developed over the course of the project as the team learned what worked and what didn't. Initially, larger exclosures were vulnerable to elk and springtime flooding; the elk were able to knock down the fence and in 2005, during high run-off, more than 30 of these exclosures were washed away. Subsequently, the team built smaller structures and raised the fence line to allow for high water flows to carry accumulated debris underneath.

At the end of the tour Zeedyk acknowledged that the Achilles heel of the project will be the ability of the restoration team to continue to maintain the structures, particularly the exclosures. Joe Torres, project coalition member of the Valle Vidal Grazing Association, shares Zeedyk's concern. While he supports the goals of the project, he pointed out that because the Comanche Creek Restoration project focused on the innovative restoration methods described above, it generated a large amount of funding that may not be sustainable (combined grants and in-kind and cash donations equal approximately $443,000). Rather than expensive, labor-intensive exclosures, he would have rather seen more money spent on planting willows and other streambank vegetation that could withstand a certain amount of foraging by elk. (Other project members believe the Comanche Creek soils limit woody vegetation and therefore established growth needs to be protected.) Torres also believes that the coalition could have done more to involve the local communities of Amalia, Costilla, Questa, Cimarron, and Angel Fire.

Dr. Arnold Atkins, of New Mexico Trout and the Truchas Chapter of Trout Unlimited, another non-profit dedicated to the restoration of New Mexico's cold-water fisheries, believes that the project will benefit local communities by making it unnecessary to list the Rio Grande cutthroat trout as an endangered species. He pointed out that if the trout is listed all kinds of restrictions will be applied to grazing, logging, and recreation in the Valle Vidal Unit.

The use of the agent rotenone to poison the invasive fish populations (rainbow trout, which interbreed with the cutthroats and whose characteristics predominate, and white suckers, which eat the cutthroat eggs) in Comanche Creek continues to be controversial. Last summer, New Mexico Game and Fish treated about 20 miles of the creek and its tributaries north of the fish barrier at the confluence of Comanche and Little Costilla by allowing unlimited fishing, physical removal through electro-shock, and an application of rotenone. Numerous invasive fish survived, however, and the department believes another application is necessary before the creek should be restocked with the cutthroat.

This action elicited a very vocal opposition; many people wrote letters to the editors and op-ed pieces expressing their outrage over the use of rotenone. Willem Malten, former owner of Cloud Cliff Bakery and also involved in the New Mexico Organic Wheat Project, wrote this: "Claims by the New Mexico Department of Game and Fish (NMDFG) and the U.S. Wildlife Service that the poisons used, rotenone and antimycin, kill only fish and dissipate in the waters after several weeks, demonstrate a profound and disappointing misunderstanding of how chemicals interact with their environment. After the work of Rachel Carson and so many others we should know that these chemicals don't just disappear &emdash; they, in particular ones with an affinity to fatty acids, bioaccumulate in the food chain and inflict harm on every level. . . . Whether or not the concentrations used are very small (40 to 50 parts per billion), which is what the NMDGF argues, is immaterial: these chemicals don't need to be introduced unnecessarily into pristine waterways." Dr. Ann McCampbell, who is an advocate for those who suffer from environmental illnesses, particularly chemical sensitivity, also wrote an op-ed reiterating Malten's concerns.

Atkins, a medical doctor for more than 35 years, wrote responses to Malten and Dr. McCampbell: "Rotenone, the main ingredient in CFT Legumine, is a naturally occurring extract of several members of the pea family, and it has been used by indigenous people to harvest fish for food for centuries. It has also been used as an insecticide by organic farmers for years, usually in a powdered form which is much more dangerous to air breathing animals." He also accused Dr. McCampbell of ignoring the crucial issue of dosage: "When mixed and delivered into a body of water being treated to remove unwanted fish, the final concentration of rotenone in CFT Legumine is about 40 parts per billion. Most of us don't often think in those terms, so here's a conversion illustration. Forty parts per billion is about 4 teaspoons of solid rotenone in about 125,000 gallons of water. . . . Actual studies done on laboratory animals giving them water with much higher concentrations of CFT Legumine than used in this project as their only source of liquid for prolonged periods showed no ill effects on the animals."

According to Atkins, the Truchas Chapter of Trout Unlimited has committed its support to help maintain the elk exclosures with resources available from the group. Abe Franklin of the Surface Water Bureau of the New Mexico Environment Department said that there might be more money available through Environmental Protection Agency grants for maintenance. Franklin believes the project is going to be "data rich" and will produce valuable information regarding the effects the innovative restoration methods will have on stream sedimentation and water temperature. The Environment Department is working in conjunction with Ryan Weiss, a water resource graduate student from the University of New Mexico, and the Forest Service, to monitor the project's progress.